In re Babcock, 07-P-384.

• Decision Date: 08 May 2008
• Docket Number: No. 07-P-384.,07-P-384.
• Citation: 71 Mass. App. Ct. 687,885 N.E.2d 853
• Parties: John C. BABCOCK, Petitioner.
• Court: Appeals Court of Massachusetts

885 N.E.2d 853

71 Mass. App. Ct. 687

John C. BABCOCK, Petitioner.

No. 07-P-384.

Appeals Court of Massachusetts, Middlesex.

Argued December 11, 2007.

Decided May 8, 2008.

Charles Anderson, Jr., for the respondent.

John C. Babcock, pro se.

Present: COWIN, BROWN, & KAFKER, JJ.¹

COWIN, J.

The petitioner, John C. Babcock, a prisoner presently incarcerated at the Massachusetts Correctional Institution at Concord, appeals from the denial by a judge of the Superior Court of his petition for a writ of habeas corpus. He raises a question regarding the interaction between certain Federal sentences and a subsequently imposed State "from and after" sentence, and the effect of that interaction on the date on which he is entitled to release from State confinement. We conclude, on this record, that the Federal sentences should be treated as an aggregated, single sentence; the State "from and after" sentence therefore did not commence to run until the petitioner was released from Federal confinement altogether; and therefore the petitioner is not yet eligible for release from State confinement. Accordingly, we affirm the order of the Superior Court denying the petition.

1. Background. The material facts and the prior proceedings are not disputed. On July 28, 1987, the petitioner pleaded guilty in the United States District Court for the District of Vermont to charges of kidnapping during bank robbery, see 18 U.S.C. §§ 2, 2113(a), (e) (1986); and use of a firearm during commission of a crime of violence for which a person may be prosecuted in a court of the United States, see 18 U.S.C. § 924(c)(1) (1986). He received a sentence of thirty years on the bank robbery/kidnapping charge, for which he was eligible for parole, and a consecutive sentence of five years for use of a firearm, for which he was not parole-eligible. At that time, the Federal Bureau of Prisons (bureau), by virtue of its own administrative determination, "required prisoners to serve § 924(c) non-parolable sentences before serving parolable sentences, regardless of the sequence indicated by the sentencing court." United States vs. Luskin, U.S.Ct.App., No 00-4846 (4th Cir. Aug. 17, 2001).

Consequently, the petitioner was deemed to be serving the five-year nonparolable sentence when, on May 3, 1988, he was sentenced on five State charges in the Superior Court.² He was sentenced by a judge of the Superior Court to from nine to ten years on four of the counts, and to from three to five years on the remaining count, all of the sentences to be served concurrently. Aware that the petitioner was already incarcerated in connection with the Federal convictions, the Superior Court judge directed that the State sentences take effect "from and after" the Federal sentence that had been imposed the previous year.

The respective mittimuses in the various State proceedings articulated the "from and after" directive in various ways. On the armed robbery conviction (indictment no. 82882), the mittimus stated that the petitioner would serve from nine to ten years "from and after Federal Sentence deft. is presen[tl]y serving." With respect to the unlawful possession of a firearm conviction (indictment no. 82884), the sentence was from three to five years "from and after Federal sentence deft. is presently serving imposed on 7/28/87 in Federal District Court of Vermont and concurrent with sentence in 82882." On the remaining three charges, the mittimus read in each instance that the sentence would be "from and after sentence now serving imposed on 7/27/87[³] in Federal District Court of Vermont and concurrent with" the other State sentences imposed at the same time. Thus, in each instance, the mittimus referred to a Federal sentence being served at the time of imposition of the State sentences as the point of reference from which commencement of the concurrent State sentences would take place.

In 1997, the United States Supreme Court rejected the practice of the bureau requiring that a non-parolable sentence imposed under 18 U.S.C. § 924(c) be served first, concluding that the requirement conflicted unlawfully with the statutory authority of Federal trial judges to determine the order in which sentences are to be served. See United States v. Gonzales, 520 U.S. 1, 6-8, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997). In response, the bureau revised its policy retroactively to provide, consistent with the Supreme Court decision, that sentences would be deemed served in the sequence specified in the judgment and commitment order. This administrative change resulted in the bureau's treatment of the petitioner's commitment as commencing with the thirty-year sentence (or whatever portion thereof he actually served as a result of parole or other offsets) followed by the five-year sentence (or the portion thereof actually to be served following the application of credits).

With the thirty-year sentence being served first, the petitioner was paroled from that sentence on February 26, 2003, at which time he began serving the five-year sentence. He was released from that sentence on May 4, 2006, and was transferred to the custody of the Department of Correction (department) to commence serving the State sentences. The department recorded his expected release date as January 17, 2009.⁴ Shortly after his transfer to State custody, the petitioner commenced the present proceeding by filing a petition for a writ of habeas corpus alleging that the State sentencing judge had intended that the concurrent sentences he imposed in 1988 would commence "from and after" the five-year sentence that the petitioner was then deemed to be serving, and run concurrently with the thirty-year sentence (then thought to be the subsequent sentence).⁵ On this theory, the petitioner's State sentences would have been completed in 1996, his Federal sentences would have been completed when he was paroled from the subsequent thirty-year sentence, and he would therefore be eligible for immediate release from State custody. See Nelson v. Commissioner of Correction, 390 Mass. 379, 386, 456 N.E.2d 1100 (1983).

The petitioner thereafter filed a motion for summary judgment. The department filed no response to that motion, but did file an opposition to the petition asserting that the petition should be dismissed because (1) the petitioner's previously filed motion to revise and revoke constituted a pending prior action under Mass.R.Civ.P. 12(b)(9), 365 Mass. 755 (1974); (2) the petition was filed in the wrong venue; and (3) relief should have been sought under Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001). The motion judge rejected each of these contentions, we believe correctly, and the department has not appealed.

The department addressed the merits of the petition in a supplemental opposition wherein it asserted for the first time that the petitioner's release date with respect to the State sentences was not January 17, 2009, but instead was March 12, 2012. This was based on the department's view that the State sentences could commence only after the petitioner had served both Federal sentences⁶ because, among other things, the State sentencing judge had not stated explicitly that the State sentences were to be served concurrently with any portion of the Federal sentences, thereby requiring that the date of commencement of the State sentences be changed from February 26, 2003 (the date of release from the thirty-year Federal sentence) to May 4, 2006 (the date of release from the five-year Federal sentence).

The motion judge denied both the petitioner's motion for summary judgment and his petition, while allowing the department's motion to dismiss on the merits (as opposed to the procedural objections, which the judge had rejected). In doing so, he stated in dictum that the Federal sentences imposed on the petitioner in 1987 appeared to be interdependent, and therefore should be aggregated for the purpose of determining commencement of the State sentences. In the final analysis, however, he based his ruling exclusively on the proposition that, whether the Federal sentences were viewed in the aggregate, or only service of the thirty-year sentence was considered, the State sentences would have commenced at the earliest in February, 2003. If so, the petitioner's presumptive release date would take place in January, 2009, he was not presently eligible for immediate release, and a writ of habeas corpus could not issue.

2. Discussion. We agree with the motion judge that the petitioner is not entitled to a writ of habeas corpus. We reach this conclusion without reference to the order in which his Federal sentences should be deemed to have been served, a question we need not decide, because we conclude in any event that the State sentences were intended to be served from and after completion of the Federal sentences in the aggregate.⁷ The remedy of habeas corpus is available to those individuals who contend that "the term of a lawfully imposed sentence has expired." Stewart, petitioner, 411 Mass. 566, 568, 583 N.E.2d 854 (1992), quoting from Averett, petitioner, 404 Mass. 28, 31, 533 N.E.2d 1023 (1989). To be entitled to issuance of the writ, a petitioner must establish that he is entitled to an immediate release from confinement, and that therefore further incarceration of him is unlawful. See Hennessy v. Superintendent, Mass. Correctional Inst., Framingham, 386 Mass. 848, 851-852, 438 N.E.2d 329 (1982). Because the petitioner was unable to demonstrate that he was entitled to immediate relief, his petition was correctly denied.

In arriving at our conclusion, we address the related questions whether the Federal sentences are to be aggregated for the purpose of determining the date of commencement of the State sentences, and whether the State sentencing judge intended that the State sentences be served "from and after" the aggregated Federal sentences or after service of the first Federal sentence (thereby...